2019 (3) TMI 1217 - AT - Service Tax

CENVAT credit - input services - denial of the credit on the ground that provider of services should not have paid service tax - Construction of Industrial or Complex service - service tax collected for construction of roads carried out by M/s. Sunmar Constructions - Held that - It is seen that M/s. Sunmar Constructions have collected service tax from the appellant and issued proper invoices. The appellants have availed credit of the same amount under proper documents. It is now the case of the department that M/s. Sunmar Constructions ought not to have paid service tax on the construction of the roads since such activities are not leviable to service - On an analogous situation, wherein credit was availed on inputs, when the process does not amount to manufacture, the Courts have consistently held that the credit cannot be denied at the receiver s end. The Hon ble Apex Court in the case of Commissioner of Central Excise Vs. MDS Switchgear Ltd. 2008 (8) TMI 37 - SUPREME COURT has held that the MODVAT credit enables the recipient manufacturer to avail the benefit of duty paid by the supplier manufacturer - In the present case, CENVAT scheme enables the service recipient to avail credit of the service tax paid by the service provider. The CENVAT scheme therefore allows the manufacturer or service recipient to avail the credit of duty to the extent that has been paid by the supplier or provider and in the invoices in full unless the same is restricted or barred by some other legal provision in law. The manufacturer or service recipient cannot be denied the credit only on the score that the same has been short-paid or has been paid when not required. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Eligibility of availing CENVAT credit on service tax paid for construction of roads by a service provider.

Analysis:
The case involved the appellant, engaged in manufacturing passenger cars, availing CENVAT credit on service tax paid by a service provider for constructing roads within the factory premises. The department contended that the construction of roads did not fall under the definition of Construction of Industrial or Complex service, making the credit ineligible. The appellant argued that since the service provider collected service tax and issued proper invoices, the credit should be allowed. The appellant cited precedents where courts upheld credits even when the process did not amount to manufacture. The High Court of Gujarat and the Tribunal decisions were referenced to support the appellant's stance.

The appellant's counsel relied on the decision of the Hon'ble High Court of Gujarat and Tribunal rulings to support the eligibility of the credit. The department, represented by the ld. AR, maintained that the services provided by the service provider did not fall under the definition of Construction of Industrial or Complex service, hence making the credit ineligible. The AR referred to relevant sections of the Finance Act, 1994, emphasizing that the services were not liable to service tax, suggesting that the service provider could seek a refund if necessary.

The key issue revolved around whether the appellant could rightfully avail credit for the service tax paid by the service provider for constructing roads. The Tribunal analyzed previous court decisions, citing the Hon'ble High Court of Gujarat and the Apex Court's rulings to support the appellant's position. The Tribunal underscored that the fundamental concept of CENVAT credit was to prevent tax cascading and compensate the recipient for taxes paid by the supplier. The Tribunal concluded that the demand could not be sustained, setting aside the impugned order and allowing the appeal with any consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, allowing them to avail CENVAT credit on the service tax paid for the construction of roads by the service provider. The decision was supported by legal precedents emphasizing the recipient's right to credit when taxes were paid by the supplier, aligning with the core purpose of the CENVAT scheme to prevent tax cascading and provide relief to recipients who had borne taxes.